Jose Pelayo et al v. City of Pomona et al

Filing 35

STIPULATED PROTECTIVE ORDER by Magistrate Judge Steve Kim. In re Stipulation for Protective Order 34 . (clee)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Jose Pelayo, Jesus Pelayo, Victor
12 Pelayo
Plaintiff,

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v.

15 CITY OF POMONA, POMONA
POLICE DEPARTMENT CHIEF
16 PAUL CAPRARO, individually and in
his official capacity, AUSTIN DOSSEY
17 #42108, individually and as a peace
officer, FRANK SACCA #41873,
18 individually and as a peace officer, TIM
DORN #41974, individually and as a
19 peace officer, PRINCE HUTCHINSON
#42642, individually and as a peace
20 officer, and DOES 1-10.
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Case No. 2:17- CV-07292-PSG(SKx)

STIPULATED PROTECTIVE
ORDER

Defendant.

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PURPOSES AND LIMITATIONS

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A. Discovery in this action is likely to involve production of confidential,

25 proprietary, or private information for which special protection from public
26 disclosure and from use for any purpose other than prosecuting this litigation may
27 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
28 enter the following Stipulated Protective Order. The parties acknowledge that this
Stipulated Protective Order

1 Order does not confer blanket protections on all disclosures or responses to
2 discovery and that the protection it affords from public disclosure and use extends
3 only to the limited information or items that are entitled to confidential treatment
4 under the applicable legal principles. The parties further acknowledge, as set forth in
5 Section 12.3, below, that this Stipulated Protective Order does not entitle them to
6 file confidential information under seal; Civil Local Rule 79-5 sets forth the
7 procedures that must be followed and the standards that will be applied when a party
8 seeks permission from the court to file material under seal.
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B. GOOD CAUSE STATEMENT
This action is likely to involve confidential official information, attorney

11 work product, private government information including deliberative processes of
12 government employees contained in the Los Angeles County District Attorney files
13 regarding the criminal case of People of the State of California v. Jose Pelayo, Jesus
14 Pelayo and Victor Pelayo 5PK04838. Such confidential and proprietary materials
15 and information consist of, among other things, information implicating privacy
16 rights of third parties, information otherwise generally unavailable to the public, or
17 which may be privileged or otherwise protected from disclosure under state or
18 federal statutes, court rules, case decisions, or common law. Accordingly, to
19 expedite the flow of information, to facilitate the prompt resolution of disputes over
20 confidentiality of discovery materials, to adequately protect information the parties
21 are entitled to keep confidential, to ensure that the parties are permitted reasonable
22 necessary uses of such material in preparation for and in the conduct of trial, to
23 address their handling at the end of the litigation, and serve the ends of justice, a
24 protective order for such information is justified in this matter. It is the intent of the
25 parties that information will not be designated as confidential for tactical reasons
26 and that nothing be so designated without a good faith belief that it has been
27 maintained in a confidential, non-public manner, and there is good cause why it
28 should not be part of the public record of this case.
Stipulated Protective Order

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2. DEFINITIONS

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2.1 Action: Jose Pelayo et al. v. City of Pomona et al.

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2.2 Challenging Party: Los Angeles County Counsel that challenges the

4 designation of information or items under this Order.
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2.3 “CONFIDENTIAL” Information or Items: information (regardless of how

6 it is generated, stored or maintained) or tangible things that qualify for protection
7 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
8 Cause Statement.
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2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

10 support staff).
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2.5 Designating Party: a Party or Non-Party that designates information or

12 items that it produces in disclosures or in responses to discovery as
13 “CONFIDENTIAL.”
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2.6 Disclosure or Discovery Material: all items or information, regardless of

15 the medium or manner in which it is generated, stored, or maintained (including,
16 among other things, testimony, transcripts, and tangible things), that are produced or
17 generated in disclosures or responses to discovery in this matter.
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2.7 Expert: a person with specialized knowledge or experience in a matter

19 pertinent to the litigation who has been retained by a Party or its counsel to serve as
20 an expert witness or as a consultant in this Action.
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2.8 House Counsel: attorneys who are employees of a party to this Action.

22 House Counsel does not include Outside Counsel of Record or any other outside
23 counsel.
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2.9 Non-Party: any natural person, partnership, corporation, association, or

25 other legal entity not named as a Party to this action.
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2.10 Outside Counsel of Record: attorneys who are not employees of a party

27 to this Action but are retained to represent or advise a party to this Action and have
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Stipulated Protective Order

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1 appeared in this Action on behalf of that party or are affiliated with a law firm which
2 has appeared on behalf of that party, and includes support staff.
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2.11 Party: any party to this Action, including all of its officers, directors,

4 employees, consultants, retained experts, and Outside Counsel of Record (and their
5 support staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or

7 Discovery Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation support

9 services (e.g., photocopying, videotaping, translating, preparing exhibits or
10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11 and their employees and subcontractors.
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2.14 Protected Material: any Disclosure or Discovery Material that is

13 designated as “CONFIDENTIAL.”
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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

15 from a Producing Party.
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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

18 Protected Material (as defined above), but also (1) any information copied or
19 extracted from Protected Material; (2) all copies, excerpts, summaries, or
20 compilations of Protected Material; and (3) any testimony, conversations, or
21 presentations by Parties or their Counsel that might reveal Protected Material.
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Any use of Protected Material at trial shall be governed by the orders of the

23 trial judge. This Order does not govern the use of Protected Material at trial.
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4.

DURATION

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Once a case proceeds to trial, all of the information that was designated as

26 confidential or maintained pursuant to this protective order becomes public and will
27 be presumptively available to all members of the public, including the press, unless
28 compelling reasons supported by specific factual findings to proceed otherwise are
Stipulated Protective Order

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1 made to the trial judge in advance of the trial. See Kamakana v. City and County of
2 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
3 showing for sealing documents produced in discovery from “compelling reasons”
4 standard when merits-related documents are part of court record). Accordingly, the
5 terms of this protective order do not extend beyond the commencement of the trial.
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Even after final disposition of this litigation, the confidentiality obligations

7 imposed by this Order shall remain in effect until a Designating Party agrees
8 otherwise in writing or a court order otherwise directs. Final disposition shall be
9 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
10 or without prejudice; and (2) final judgment herein after the completion and
11 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
12 including the time limits for filing any motions or applications for extension of time
13 pursuant to applicable law.
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5.

DESIGNATING PROTECTED MATERIAL

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5.1 Exercise of Restraint and Care in Designating Material for Protection.

16 Each Party or Non-Party that designates information or items for protection under
17 this Order must take care to limit any such designation to specific material that
18 qualifies under the appropriate standards. The Designating Party must designate for
19 protection only those parts of material, documents, items, or oral or written
20 communications that qualify so that other portions of the material, documents,
21 items, or communications for which protection is not warranted are not swept
22 unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations

24 that are shown to be clearly unjustified or that have been made for an improper
25 purpose (e.g., to unnecessarily encumber the case development process or to impose
26 unnecessary expenses and burdens on other parties) may expose the Designating
27 Party to sanctions.
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Stipulated Protective Order

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If it comes to a Designating Party’s attention that information or items that it

2 designated for protection do not qualify for protection, that Designating Party must
3 promptly notify all other Parties that it is withdrawing the inapplicable designation.
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5.2 Manner and Timing of Designations. Except as otherwise provided in this

5 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
7 under this Order must be clearly so designated before the material is disclosed or
8 produced.
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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents,

11 but excluding transcripts of depositions or other pretrial or trial proceedings), that
12 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
13 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
14 portion or portions of the material on a page qualifies for protection, the Producing
15 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
16 markings in the margins).
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A Party or Non-Party that makes original documents available for inspection

18 need not designate them for protection until after the inspecting Party has indicated
19 which documents it would like copied and produced. During the inspection and
20 before the designation, all of the material made available for inspection shall be
21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
22 documents it wants copied and produced, the Producing Party must determine which
23 documents, or portions thereof, qualify for protection under this Order. Then, before
24 producing the specified documents, the Producing Party must affix the
25 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
26 portion or portions of the material on a page qualifies for protection, the Producing
27 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
28 markings in the margins).
Stipulated Protective Order

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(b)

for testimony given in depositions that the Designating Party identify

2 the Disclosure or Discovery Material on the record, before the close of the
3 deposition all protected testimony.
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(c)

for information produced in some form other than documentary and for

5 any other tangible items, that the Producing Party affix in a prominent place on the
6 exterior of the container or containers in which the information is stored the legend
7 “CONFIDENTIAL.” If only a portion or portions of the information warrants
8 protection, the Producing Party, to the extent practicable, shall identify the protected
9 portion(s).
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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

11 failure to designate qualified information or items does not, standing alone, waive
12 the Designating Party’s right to secure protection under this Order for such material.
13 Upon timely correction of a designation, the Receiving Party must make reasonable
14 efforts to assure that the material is treated in accordance with the provisions of this
15 Order.
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1 Timing of Challenges. Any Party or Non-Party may challenge a

18 designation of confidentiality at any time that is consistent with the Court’s
19 Scheduling Order.
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6.2 Meet and Confer. The Challenging Party shall initiate the dispute

21 resolution process under Local Rule 37.1 et seq.
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6.3 The burden of persuasion in any such challenge proceeding shall be on the

23 Designating Party. Frivolous challenges, and those made for an improper purpose
24 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
25 expose the Challenging Party to sanctions. Unless the Designating Party has waived
26 or withdrawn the confidentiality designation, all parties shall continue to afford the
27 material in question the level of protection to which it is entitled under the
28 Producing Party’s designation until the Court rules on the challenge.
Stipulated Protective Order

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7. ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1 Basic Principles. A Receiving Party may use Protected Material that is

3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a
7 Receiving Party must comply with the provisions of section 13 below (FINAL
8 DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a

10 location and in a secure manner that ensures that access is limited to the persons
11 authorized under this Order.
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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

13 ordered by the court or permitted in writing by the Designating Party, a Receiving
14 Party may disclose any information or item designated “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

16 employees of said Outside Counsel of Record to whom it is reasonably necessary to
17 disclose the information for this Action;
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(b)

the officers, directors, and employees (including House Counsel) of the

19 Receiving Party to whom disclosure is reasonably necessary for this Action;
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(c)

Experts (as defined in this Order) of the Receiving Party to whom

21 disclosure is reasonably necessary for this Action and who have signed the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

26 Vendors to whom disclosure is reasonably necessary for this Action and who have
27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(g)

the author or recipient of a document containing the information or a

2 custodian or other person who otherwise possessed or knew the information;
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(h)

during their depositions, witnesses ,and attorneys for witnesses, in the

4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
5 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
6 not be permitted to keep any confidential information unless they sign the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
8 agreed by the Designating Party or ordered by the court. Pages of transcribed
9 deposition testimony or exhibits to depositions that reveal Protected Material may
10 be separately bound by the court reporter and may not be disclosed to anyone except
11 as permitted under this Stipulated Protective Order; and
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(i)

any mediator or settlement officer, and their supporting personnel,

13 mutually agreed upon by any of the parties engaged in settlement discussions.
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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

15 IN OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation

17 that compels disclosure of any information or items designated in this Action a
18 “CONFIDENTIAL,” that Party must:
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(a)

promptly notify in writing the Designating Party. Such notification

20 shall include a copy of the subpoena or court order;
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(b)

promptly notify in writing the party who caused the subpoena or order

22 to issue in the other litigation that some or all of the material covered by the
23 subpoena or order is subject to this Protective Order. Such notification shall include
24 a copy of this Stipulated Protective Order; and
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(c)

cooperate with respect to all reasonable procedures sought to be

26 pursued by the Designating Party whose Protected Material may be affected.
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If the Designating Party timely seeks a protective order, the Party served with

28 the subpoena or court order shall not produce any information designated in this
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1 action as “CONFIDENTIAL” before a determination by the court from which the
2 subpoena or order issued, unless the Party has obtained the Designating Party’s
3 permission. The Designating Party shall bear the burden and expense of seeking
4 protection in that court of its confidential material and nothing in these provisions
5 should be construed as authorizing or encouraging a Receiving Party in this Action
6 to disobey a lawful directive from another court.
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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

8 PRODUCED IN THIS LITIGATION
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(a)

The terms of this Order are applicable to information produced by a

10 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
11 produced by Non-Parties in connection with this litigation is protected by the
12 remedies and relief provided by this Order. Nothing in these provisions should be
13 construed as prohibiting a Non-Party from seeking additional protections.
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(b)

In the event that a Party is required, by a valid discovery request, to

15 produce a Non-Party’s confidential information in its possession, and the Party is
16 subject to an agreement with the Non-Party not to produce the Non-Party’s
17 confidential information, then the Party shall:
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(1)

promptly notify in writing the Requesting Party and the Non-Party that

19 some or all of the information requested is subject to a confidentiality agreement
20 with a Non-Party;
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(2)

promptly provide the Non-Party with a copy of the Stipulated

22 Protective Order in this Action, the relevant discovery request(s), and a reasonably
23 specific description of the information requested; and
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(3)

make the information requested available for inspection by the Non-

25 Party, if requested.
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(c) If the Non-Party fails to seek a protective order from this court within 14

27 days of receiving the notice and accompanying information, the Receiving Party
28 may produce the Non-Party’s confidential information responsive to the discovery
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1 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
2 not produce any information in its possession or control that is subject to the
3 confidentiality agreement with the Non-Party before a determination by the court.
4 Absent a court order to the contrary, the Non-Party shall bear the burden and
5 expense of seeking protection in this court of its Protected Material.
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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

8 Protected Material to any person or in any circumstance not authorized under this
9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
10 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
11 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
12 persons to whom unauthorized disclosures were made of all the terms of this Order,
13 and (d) request such person or persons to execute the “Acknowledgment and
14 Agreement to Be Bound” that is attached hereto as Exhibit A.
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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

16 OTHERWISE PROTECTED MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain

18 inadvertently produced material is subject to a claim of privilege or other protection,
19 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
20 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
21 may be established in an e-discovery order that provides for production without
22 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
23 as the parties reach an agreement on the effect of disclosure of a communication or
24 information covered by the attorney-client privilege or work product protection, the
25 parties may incorporate their agreement in the stipulated protective order submitted
26 to the court.
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12.

MISCELLANEOUS

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12.1 Right to Further Relief. Nothing in this Order abridges the right of any

2 person to seek its modification by the Court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

4 Protective Order no Party waives any right it otherwise would have to object to
5 disclosing or producing any information or item on any ground not addressed in this
6 Stipulated Protective Order. Similarly, no Party waives any right to object on any
7 ground to use in evidence of any of the material covered by this Protective Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any

9 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
10 only be filed under seal pursuant to a court order authorizing the sealing of the
11 specific Protected Material at issue. If a Party's request to file Protected Material
12 under seal is denied by the court, then the Receiving Party may file the information
13 in the public record unless otherwise instructed by the court.
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13. FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within 60

16 days of a written request by the Designating Party, each Receiving Party must return
17 all Protected Material to the Producing Party or destroy such material. As used in
18 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
19 summaries, and any other format reproducing or capturing any of the Protected
20 Material. Whether the Protected Material is returned or destroyed, the Receiving
21 Party must submit a written certification to the Producing Party (and, if not the same
22 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
23 (by category, where appropriate) all the Protected Material that was returned or
24 destroyed and (2)affirms that the Receiving Party has not retained any copies,
25 abstracts, compilations, summaries or any other format reproducing or capturing any
26 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
27 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
28 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
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1 reports, attorney work product, and consultant and expert work product, even if such
2 materials contain Protected Material. Any such archival copies that contain or
3 constitute Protected Material remain subject to this Protective Order as set forth in
4 Section 4 (DURATION).
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14. Any violation of this Order may be punished by any and all appropriate

9 measures including, without limitation, contempt proceedings and/or monetary
10 sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: February 12, 2018

MARY C. WICKHAM
County Counsel

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By

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Attorneys for Los Angeles County
District Attorney, Designating NonParty

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/s/ Jonathan McCaverty
JONATHAN McCAVERTY
Principal Deputy County Counsel

DATED: Febaruay 12, 2018

MKRTCHYAN LAW

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By

/s/ Narine Mkrtchyan

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Attorney for PLAINTIFF

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Stipulated Protective Order

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Order

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Date: February 12, 2018

__________________________
Honorable Steve Kim
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of
_________________ [print or type full address], declare under penalty of perjury
that I have read in its entirety and understand the Stipulated Protective Order that
was issued by the United States District Court for the Central District of California
on [date] in the case of ___________ [insert formal name of the case and the
number and initials assigned to it by the court]. I agree to comply with and to be
bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment
in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Stipulated Protective Order to any
person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Central District of California for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action. I hereby appoint __________________________ [print
or type full name] of _______________________________________ [print or type
full address and telephone number] as my California agent for service of process in
connection with this action or any proceedings related to enforcement of this
Stipulated Protective Order.
Date: ______________________________________
City and State where sworn and signed: _________________________________
Printed name: _______________________________
Signature: __________________________________

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Stipulated Protective Order

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